Simsbury, CT - Conservation Commission Minutes

Chairman, Richard Miller, called the Special Meeting of the Conservation Commission/Inland Wetlands and Watercourses Agency to order at 7:35 PM in the Main Meeting Room of the Simsbury Town Offices. The following members were present: Commissioners Margery Winters, Margaret Sexton, Ryan Mihalic, Domonick Zackeo, and Alternate Thomas Sharpless. Also in attendance were Hiram Peck, Director of Planning, Howard Beach, Conservation Officer, Alison Sturgeon, Commission Clerk and other interested parties.

T.J. Donohue stated that he represents Konover Developers in connection with the River Oaks project, which has proposed a PDD zone for Simsbury. He stated that the proposed concept is, that once there is a qualified piece of property, the land use agencies will have significant control to allow a mix of uses. The applicant was asked by the Town Council to withdraw parts of their application and change the order so they could proceed with the PDD first.

Tonight, the applicant will be talking to the Commission about the proposed PDD and also the piece of property which may someday become a PDD, although, they are not seeking any permits tonight with respect to the site. They will only be using this site as an example of how a PDD might work. This new regulation, if adopted, will enable a new era of design and new approach as to how to utilize the remaining land in Simsbury. Mr. Donohue stated that they are sponsoring this PDD because it will enable and energize smart growth, because it is important in in-fill situations linking other developments with surrounding locations, and also because it will make some dysfunctional pedestrian places very functional.

Amy Luzi, Konover Development Corporation, gave a presentation regarding mixed use and the PDD and how it applies to certain sites in Simsbury. The applicant is asking for a favorable comment regarding the proposed PDD from this Commission. She talked about the benefits of a mixed-use development in a PDD being the walkability of the site and the shared parking. She stated that the proposed PDD would help to control sprawl by creating smart and efficient use of the site. Ms. Luzi stated that the River Oaks site is situated in the middle of existing mixed uses. The site is surrounded by retail, offices, recreational open space, and various forms of residential housing. She stated that they have a unique opportunity to interconnect these functions by in-filling the gap between them with a pedestrian friendly walkable development, which will create a center to a neighborhood, which was defined many years ago.

Ms. Luzi defined LEED for the Commission. LEED stands for Leadership in Energy & Environmental Design. The LEED rating system was originally created as a way to define buildings for new commercial construction and has since expanded to include existing buildings, commercial interiors, Core & Shell developments, single family homes and neighborhood developments. LEED certification provides independent verification that a development location and design meet high standards for environmentally responsible and sustainable designs.

Michael Klein, Biologist and Soil Scientist, stated that although this is a new concept for Simsbury, these changes have been occurring throughout the State. It is not the density of a proposal that causes environmental impacts, it is the proper interaction of the site plan with the resources of the site. Mr. Klein gave a presentation and stated that his office has delineated the wetlands on the property, and has done detailed wildlife and botanical surveys. The information that was gathered was put into a concept plan, which was used to develop the PDD regulation. He discussed the general characteristics of this 60-acre site and also discussed the history of this property.

Mr. Klein discussed the wetland delineation. He stated that they marked the wetland boundaries. They found that there are only a minor amount of wetlands involved with this site. Regarding the botanical inventory, Mr. Klein stated that they identified four different plan communities, including landscaped grounds, cultivated fields, mixed hardwood forest, and wooded wetland. He stated that most of the site is devoid of native vegetation. Regarding the wildlife survey, this was conducted in the spring and early summer. The five habitat types that were identified were agricultural, developed, wooded wetland, hedgerow, and woodland. He stated that in the past, the DEP had done surveys in this area. Mr. Klein asked the DEP what was found at or near this site. Although Mr. Klein found none on the site during detailed field surveys, the DEP stated that there could possibly be the Brown Thrasher, Eastern Meadowlark, Northern Leopard Frog, and the Eastern Box Turtle located on the property. As part of the environmental inventory, Mr. Klein stated that they did find some sensitive resources, although, they are mostly off of the site. They include the wetland/watercourse, DEP Nod Brook Wildlife Management Area, and the Farmington River.

In summary, Mr. Klein discussed the natural resource protection issues with the Commission. He stated that this is an in-fill development of a partially developed site with largely tilled fields. There are only minor wetland areas on the site. The applicant will be working hard to protect the Farmington River and the DEP site from adverse impacts from storm water discharge, which include quality and quantity impacts and temperature. Mr. Klein recommended the use of LID (Low Impact Development) techniques.

Commissioner Sharpless questioned if Mr. Klein knew of any quantitative standards for water quality runoff. Mr. Klein stated that there were standards for specific contaminants with respect to specific organisms, although, this is not a regulatory standard. The regulatory standard is the 80% TSS (total suspended solids) removal that the CT DEP has required. Commissioner Sharpless stated that he feels the main problem with this kind of zoning is the higher density and the higher impervious surfaces and the effects that it has on storm water runoff quality. He feels that something should be written into this proposed regulation regarding standards for water quality.

Chairman Miller questioned what the five major components for energy conservation were. Ms. Luzi stated that four of the five were: energy and atmosphere, water, indoor air quality, and site-specific environment. She stated that she would find out what the fifth component was and submit it to the Commission. Regarding shared parking, Chairman Miller questioned if this would reduce the ratio. Ms. Luzi stated that she believe shared parking would be the most beneficial. This does not mean that the applicant would under park a site, but that they would put in the spaces that would be required. Commissioner Sexton questioned how parking applies to the PDD. Mr. Donohue stated that at this time, the Zoning Regulations provide significant discretion for land use agencies to reduce parking.

Commissioner Sexton stated that she believes what was presented tonight is not true LID but in reality it is mitigation of what the applicant would be causing. Mr. Klein stated that the imperviousness is related to water quality impacts only under the assumption that there have not been any removal techniques applied. He stated that there is a tension between the environmental benefits and a new urbanistic approach reducing the amount of auto transportation that would be required. There cannot be these kinds of places without having higher levels of imperviousness. Mr. Klein stated that he believes that dense cities surrounded by large areas of open space have far less impact than traditional developments. Commissioner Sexton disagreed that having a lot of storm water runoff as long as the water is of good quality is acceptable. Mr. Klein stated that in his judgment, quality issues are paramount because there are many ways to deal with the quantity through traditional site engineering techniques.

Chairman Miller stated that regarding the permeable asphalt, there may be water quality concerns in terms of what may be dripping off vehicles and whether the LID can accurately treat this. Mr. Donohue stated that there are maintenance programs for this. If there is a true low use area for seasonal parking on the site, his team is committed to trying to treat that area with impervious surface. Chairman Miller also questioned Mr. Donohue regarding the suitability of porous soils for infiltration. Mr. Donohue stated that Fuss & O’Neill would submit a report to the Commission on this issue. He stated that, for a great deal of the site, there is excellent potential for this. The developer is very aware that there will be no tradeoff on the storm water management. The storm water quality treatment will be an essential factor on this site.

Chairman Miller took comments and questions from the public. Julie Meyer, 3 Eastview Drive, questioned if this site was a greenfield site or an in-fill site. She believes this is a major issue regarding any environmental impact. She also questioned if the extensive natural research protection done by Mr. Klein so early on in this project was typically done with other projects. Chairman Miller stated that it is not uncommon for this Commission to see Ecological Consultants for development applications brought before this Board.

William Miller, 45 Blue Ridge, stated that this applicant is talking about a Big Box Development, although, he did not see any pictures of this in any of the presentations. He feels that building Big Boxes is not smart growth; it is dumb growth. He stated that in the past, Konover has stated that they would only build residential and office space if there was a demand. Mr. Miller stated that there is no demand for this. He also does not agree with the recommendation by the applicant for 75% lot coverage, which does not include sidewalks and green park lots that will be filled with cars. He stated that much more data needs to be submitted to the Commission before any recommendations can be made.

Mr. Donohue made a presentation regarding the proposed PDD. He stated that his team has put together a concept plan in the form of a site plan, which is currently inactive. The land use agencies in Simsbury wanted a mixed-use regulation. He stated that the applicant has made some changes to the draft PDD and has submitted it. This proposed PDD has been criticized by the Planning Commission and Design Review Board because it is a very open statement. The PDD states that if there is a piece of property which is submitted for PDD, the applicant would have to go to the Planning and Zoning Commission to show them their concept. If the land is approved by the Commission to be a PDD #1 in Simsbury for that particular concept, the concept would then be put into 40’ scale drawings. The land use agencies will have a great deal of discretion regarding the PDD.

Mr. Donohue stated that this proposed PDD could use more details. They have been asked to put in a statement of intent. The PDD contains permitted and prohibited uses and it also talks about density. It also includes the application process. He stated that the first priority is to get mixed-use development in Simsbury.

Regarding the application process, Commissioner Mihalic asked for clarification regarding the three-step submission and review process. He stated that the new language states that “…nothing herein shall prohibit Applicant from submitting detailed plans for the proposed PDD at this or other step of the process…” Step Two states, “…after amendment of the Zoning Map to include the PDD, the applicant shall submit a Master Site Plan for legislative approval by the Zoning Commission. The action is legislative. Vested rights in the Master Site Plan are created…” Commissioner Mihalic stated that once Zoning approves the concept and the applicant brings back the Master Site Plan, they have vested rights. He stated that he believes this would allow the Master Site Plan to differ from the concept that was approved by the Zoning Commission. Mr. Donohue stated that the Site Plan is less than the Preliminary Site Plan. This only gives the applicant the right, within a period of time, to bring forward the Master Plan for approval. Commissioner Mihalic feels that there are some wording issues between Step Two and Step Three, which should be cleared up. At some point between Step One and Step Three, the applicant gets vested rights in the Site Plan. He stated that it was not clear at what point in time the plans would be approved by the Zoning Commission.

Commissioner Sexton commented on the language in Step One, which states, “No wetlands approval is required and no rights to appeal are created.” She stated she does not have a problem with this section because the applicant would be trying to get a PDD created. Although, in Step Two, it states, “Wetlands approval, if applicable, is required.” She stated that she feels that the PDD should state that wetlands approval is always required. Chairman Miller stated that it is not assumed that this Commission would have a right of referral even if there were no wetland impacts. He feels that the PDD should allow for a referral to this Commission.

Chairman Miller stated that he believes that this Commission is in favor of walkability, which is maybe why the Zoning coverage requirements exclude sidewalks. This is separating concerns regarding impervious coverage. Chairman Miller suggested that there might be a need to define an additional term and look at it from a water quality, water quantity perspective and also define impervious coverage separately. He stated that the definition must include sidewalks.

Regarding the proposed PDD, Section 5b., Commissioner Mihalic read the language, “For purposes of the PDD regulations, “lot coverage” is the percentage of the entire parcel that is covered by buildings, other structures, paved parking areas and other impervious surfaces but shall exclude sidewalks and other public use space…” He stated that this is a broad, undefined term that he would like to see changed. He stated that they should consider what “other public use space” are. Mr. Donohue stated that there should be a strong provision to protect the storm water management, although, the percentage of what coverage should be allowed, is not necessarily a direct calculation based upon impervious surfaces.

Commissioner Mihalic stated that the transfer of development rights section in the proposed PDD has been eliminated. He also stated that the PDD language increases the amount of impervious space to 60% with the ability to go up. He stated that during the presentation, Mr. Donohue had stated that the affects would be better than 40% because of different techniques, which can be used. Commissioner Mihalic stated that although this might be good for water quality issues and storm water management, this Commission also looks at conservation, specifically habitat and wildlife. He feels that something that might remedy the concerns of conservation is by preserving land and by transfer of development rights to make sure the necessary corridors and habitats are protected.

Regarding lot coverage, Commissioner Sexton stated that the proposed PDD states that lot coverage could be up to 75%. She stated that she feels that this number is much too high and not at all acceptable. She also stated that she does not feel this Commission should accommodate a non-existing PDD with a potential that is so high.

Mr. Klein stated that the discussion by the Commission tonight regarding imperviousness versus zoning coverage illustrates that the Commission members feel that some definitions need to be more carefully drafted. He asked the Commission to recognize that there is a difference between imperviousness, which is an engineering term, and zoning coverage. Also, on the issue of density and impacts, Mr. Klein stated that the environmental impact of a 2-acre residential development, which is low in density and low in imperviousness, is significant from a habitat standpoint.

Commissioner Winters stated that the applicant is trying to promote this site as a low-impact development, when she feels that it is a high-density development. Generally speaking with a low impact development, there is a high development area and no development in other areas. Even if this site is a good site for high development, she does not believe LID is the right terminology for this site.

Regarding Section 2, Commissioner Mihalic stated that this proposed PDD is clearly lacking a sensitivity toward the issues that this Commission is tasked with protecting for the residents of Simsbury. The only land use mentioned in the PDD General Requirements is efficiency of land use. Commissioner Mihalic stated that conservation measures dealing with the resources, the watercourses, and the habitats need to be looked at. He feels that by identifying this as a general requirement and promoting these conservation issues, it will help mitigate any impacts when design is being looked at no matter what the percentage cover area is. Commissioner Mihalic stated that the Wetlands Commission prides itself on being the steward of the Natural Resources in the Town of Simsbury. He stated that Section 2, under PDD General Requirements, there needs to be some added conservation type language. Commission Sexton agreed. She feels that this proposed PDD has no sense of natural resources. She stated that she is not opposed to a PDD, although the idea of a PDD has to meet the requirements that this Commission regulates. Mr. Donohue stated that this proposed PDD does not preempt the Wetlands Regulations.

Chairman Miller, again, took comments and questions from the public. Mr. Eric Hammerling, Executive Director of the Farmington River Watershed Association, stated that this Commission should use their power to make a recommendation to the Zoning Commission that would turn down this proposed PDD. He is very concerned about the impacts on water quality and quantity. He questioned who determines whether or not Simsbury even needs a PDD. He does not feel that an applicant should be drafting this regulation; it is the Town’s responsibility. Regarding some specific concerns, Mr. Hammerling stated, on Page 2 of the proposed PDD, General Requirements, these are general enough to be more or less meaningless. Also, under Permitted and Prohibited Uses 3.k., there is a prohibition suggested for “Dry cleaners using any hazardous chemicals.” He questioned if this suggested that other businesses using hazardous chemicals would be permitted?

Regarding Section 5, Mr. Hammerling stated that the lot coverage increases to 60% by right, and 75% with an exception from Zoning. In Section 11, there is a provision, which states the lot coverage is permitted to increase another 2.5%. He stated that this would equal an additional 1½ acres on a 60-acre site. He asked the Commission to also think about that when sidewalks and other public spaces are taken out of the calculation, the real impervious coverage could climb well above the 75%.

Mr. Hammerling stated that impervious surfaces are linked to both water quantity and water quality problems. As impervious cover increases, so does storm water pollution. Also, the increase in runoff volume adds to flooding and erosion problems. At the same time, you would be losing ground water recharge and potential problems with local stream baseflows being lower during dry periods and higher stream temperatures, which can be lethal to aquatic habitats.

Mr. Hammerling stated that there was a study done by the DEP on impervious cover. They looked at 125 streams statewide and at the impervious cover as a surrogate for water quality. He stated that they found that local basin impervious cover went beyond 12%, and none of the storm water receiving streams met the state water quality standards. Mr. Hammerling presented maps to the Commission showing existing impervious cover by local basins within the Town of Simsbury. He stated that there are a number of smaller basins in Town. There are two local basins that straddle the proposed site. Based on a study that was done by FRWA in 2003, the northern local basin, which is a part of the northern half of this proposed site, was found to be at 11% impervious. The southern local basin was found to be at 11.4% impervious. He stated that if the lot coverage was incorporated (69% of a 60 acre site), the impervious cover in the local basins would increase above 12%. This would put the water quality at risk. Mr. Hammerling also provided a map of the proposed River Oaks site. He stated that 6.3 acres of the site are proposed sidewalks, 12.9 acres are proposed buildings, and 22.6 acres are proposed roads and parking. This is a total of 41.8 acres of proposed impervious surfaces on a 60-acre site.

Mr. Hammerling asked the Commission to consider this as a Town wide zone, not just for this site, although, he feels that there are a lot of issues concerning this site. He stated that if the Town of Simsbury needs a PDD, the Town should be writing it. He encouraged the Conservation Commission to turn down this proposed PDD.

Chairman Miller thanked Mr. Hammerling for the helpful information that was given to the Commission. Commissioner Mihalic questioned Mr. Hammerling if any application that would max out at 60% of impervious surface under the proposed PDD, would have the same affect of increasing the basins above 12%. Mr. Hammerling stated that this would depend on the local basin. Having impervious coverage this high is putting the area at risk of losing natural resources and water quality and having water quantity problems. Chairman Miller questioned, regarding the proposed site, if the lot coverage was 70%, how far over 12% were the basins. Mr. Hammerling stated that they were at 12.3% for the northern basin and believes it was 12.6% for Nod Brook. He stated that the point is not the amount over 12%; the local basins are at a fragile state. He stated that proposing a significantly dense developed site would put them over the threshold.

Commissioner Winters stated that she feels there are better ways to develop some sites. She stated that there is no language in the proposed PDD saying that if there is a higher development mandating the effective imperviousness it would increase the infiltration. These things can bring down the percentages and the impacts to the streams.

Again, Chairman Miller took comments and questions from the public. Regarding the high impact development, Julie Meyer, 3 Eastview Drive, stated she has done some research regarding other developments like River Oaks. She stated that these projects set aside areas for green space. She does not feel that Konover is a TND developer.

William Miller, 45 Blue Ridge, stated that he heard the expression several times tonight regarding what the Town wants. He stated that the Town of Simsbury does not want a Big Box Development. He stated that he has presented a petition with 3,000 signatures to the Zoning Commission. People in this Town do not want lot coverage of 75%. They want buildings of the traditional scale.

Mr. Donohue stated that the dialogue that this Commission has had tonight is very important. He stated that this proposed PDD should not be turned down because of who proposed it. With respect to the comments made by Mr. Hammerling, Mr. Donohue stated that the site is currently 20% covered; the coverage percentage requirements is not at 68% of the site coverage. It is a 40% increase for the site. He stated that there have been several comments under the proposed PDD that 60% would be a standard of right. This is incorrect. He stated that 60% would be the absolute ceiling, which would be on an application by application basis. He stated that there was also a comment that the 2.5% variant could be in addition to the impervious surface. He stated that this is not his understanding. He believes the 2.5% change is when a 10,000 s.f. building is changed to 8,000 s.f. and then they would make another building 12,000 s.f. Once the coverage ratio is set, there is no deviating from that. The opportunity to make changes to the 40’ scale drawings would be a matter of administrative convenience.

Mr. Donohue asked this Commission to think about all of the dialogue that was presented tonight and to give favorable comments to the Zoning Commission and to move forward to get this regulation passed. This is not a concept that Konover developed. This is a concept that has been working its way into this community for the last four years. There should be mixed use and there should be opportunities for mixed use. Mr. Donohue thanked the Commission for their consideration.

Mr. Hiram Peck stated that he would be putting together the comments of the Design Review Board, Planning Commission, and this Commission. He will then get those comments back to the individual Commissions for their review to ensure that they are complete and accurate. At a subsequent meeting prior to September 24, 2007, each Commission will submit those comments to the Zoning Commission. Commissioner Mihalic questioned if this Commission, at the next meeting, would make a decision to either not recommend this PDD or recommend it with certain changes. Mr. Peck stated that this Commission could recommend that it be approved as presented, it could be modified and approved, or recommend that it not be approved. The Zoning Commission will then look at all of the recommendation from each Commission before making their decision.